The dictionary defines a Hail Mary Pass as a long forward pass in football where completion is considered unlikely. Volkswagen’s Hail Mary Pass is appealing maintenance workers’ union representation victory to the federal courts. Volkswagen’s appeal will almost certainly fail since every appeals court that’s considered such a case has rejected Volkswagen’s position.

The news outlet Reuters reported last month that Volkswagen faces a bumpy road in their court challenge. (read the article here) They say that experts predict Volkswagen’s legal strategy will fail, noting “every appeals court to consider a case under a standard backed by the National Labor Relations Board (NLRB) has sided with unions, including five this year.”

So why would Volkswagen use this delay tactic, since they are almost certain to lose and have to sit down and negotiate a collective bargaining agreement? Reuters notes that “with court losses piling up, the business lobby is backing a stalled effort by Republicans in Congress to reinstate a previous, more business-friendly standard for scrutinizing proposed units of workers.” However, this would require that Republicans hold onto Congress in the November 8th elections, and that Donald Trump wins so that such legislation isn’t vetoed.

Who would have known that Volkswagen has such high stakes in our national elections?

When the Jump Start reported on September 22nd that ACE had been disqualified under the

COE policy, it did not come as shocking news. The group had clearly been on life support for some time. It was not surprising that an organization funded by outside anti-union business groups with no positive message of growth or change, would not appeal to most people. But where did ACE come from in the first place

ACE grew out of the network of outside political and business groups that oppose union representation. Its registered agent is Maury Nicely who was formerly Volkswagen’s in-house counsel for human resources at our plant. He created the group “Southern Momentum” in January 2014 and coordinated his anti-union activities with Senator Bob Corker’s office, Governor Bill Haslam’s administration, former manager Don Jackson, and anti-union consultants. After the narrow loss in the February 2014 union election, Nicely’s law firm, Evans Harrison & Hackett, registered ACE as a Tennessee corporation with the Secretary of State on October 21, 2014.ACE was never able to get traction in the plant. They would never disclose their sources of funding, which led to speculation that they were colluding with anti-union politicians. After all, Nicely himself once told the Associated Press “this sounds almost silly, but ACE is a nonunion union.”

When sixty-one members of Congress wrote to Christian Koch and Sebastian Patta to express their concern about the company’s defiance of the U.S. National Labor Relations Board (NLRB), they asked them to respond and explain their behavior. After nearly two months Congress has finally received a response, not from Koch and Patta, but from the company’s lawyer David Geanacopoulos in Virginia.

The letter doesn’t answer the question that Congress put to them, specifically, why Volkswagen has ignored the democratic vote of its employees and the decisions of the U.S. National Labor Relations Board. Despite Mr. Geanacopoulos’s claim that “Volkswagen respects the right of our employees to decide the question of union representation,” the facts are pretty simple and clear: in December 2015 skilled trades employees decided to choose union representation with Local 42; Volkswagen has not respected that decision.

Criticism continues to mount over Volkswagen’s behavior in refusing to honor the decision of Chattanooga skilled trades employees to choose Local 42 for collective bargaining. This time the criticism came in Volkswagen’s back yard, when the widely-read German newspaper Die Welt published lengthy comments from U.S. Labor Secretary Thomas Perez over the company’s disregard for U.S. laws – both in the emissions cheating scandal and the defiance of NLRB orders regarding Chattanooga.

Perez expressed his strong disapproval of Volkswagen’s behavior, saying “it seems like they make one bad decision after another.” He noted that rather than apply common sense, the company seems to be getting advice from its lawyers to stall and delay. “Their [Volkswagen’s] current strategy might in the short run buy VW time in the courts,” Perez said, “but every day that passes adds another dent on the image of Volkswagen.”

Perez said he is puzzled as to why Volkswagen is prolonging the inevitable, when they must sit down and negotiate a collective bargaining agreement. “People will look at Volkswagen and see a company that cheated when it comes to emissions and now refuses to negotiate with its own employees. I do not think it is an image that you want to portray if you aim to increase your market share in America.”

You can view the original story (in German) as it appeared in Die Welthere, and read the English translation here.

In a unanimous decision, the National Labor Relations Board (NLRB) has ordered Volkswagen to come to the bargaining table and negotiate a collective bargaining agreement with Chattanooga skilled trades employees represented by UAW Local 42. For nine months, since December 2015, the company has attempted to ignore its obligation to negotiate. UAW Secretary-Treasurer Gary Casteel said “this unanimous decision makes it clear that the company has been operating in violation of federal law by refusing to come to the bargaining table.”

Skilled trades member Steve Cochran, who is Vice President of Local 42, expressed hope that the company would comply with the new order. “Together, Volkswagen and Local 42 can negotiate an agreement that works for all parties and keeps the plant moving forward,” he said.

Volkswagen appealed the vote to the NLRB last December, after employees voted by more than 70% for Local 42. The NLRB dismissed that appeal in March but VW still refused to negotiate. Local 42 filed charges over the company’s failure to bargain, as required by U.S. labor law. This new decision is in response to those charges, and makes clear that our 2015 election was proper and obligates Volkswagen to negotiate a contract with Local 42.

IG Metall, the union representing all Volkswagen workers at its plants in Germany, called on the company to act. “IG Metall President Joerg Hofmann is calling for VW to no longer act contrary to American labor law, and to seek talks with UAW without delay,” the union said in a statement.

8/12/2016: In a July 9 letter to CEO Christian Koch and HR Director Sebastian Patta, 61 members of Congress voiced their support for all parties in Chattanooga bargaining in good faith, and called on Volkswagen to respect the rights of maintenance employees who elected UAW Local 42. (see the letter here)

The elected representatives voiced their concern that Volkswagen has adopted a tactic of delay to frustrate the vote of the employees, who chose the union by more than 70%. “In our opinion”, they said “we believe that when labor and management bargain in good faith, the best outcomes are realized for all parties.”

The members of Congress noted the serious nature of the issues involved and “the potential impact they could have on relations between Germany and the United States.” They asked Mr. Koch and Mr. Patta to respond to them on each of the concerns they raised. As of August 12, there was no response.

8/12/2016: Volkswagen workers around the world are united behind UAW Local 42. IndustriALL, the federation of auto worker unions from across the globe, called out Volkswagen for ignoring the democratic vote of maintenance employees here in Chattanooga. They took the unprecedented step of filing a formal complaint (see letter here) against Volkswagen, under the Declaration on Social Rights and Industrial Relationships, which VW signed with IndustriALL and the Volkswagen Global Group Works Council in 2002. Volkswagen has never had a complaint filed against it in its history.

The IndustriALL action came after UAW Secretary-Treasurer Gary Casteel described the deceptive behavior of Volkswagen in opposing the December 2015 vote of maintenance workers. “The tricks and tactics in the south of the U.S. won’t remain there,” he said. “They will be coming to you soon.” The delegates noted that Volkswagen had hired a high-dollar “union avoidance” law firm to represent them and attempt to keep the maintenance employees tied up in court.

Volkswagen says they object to the separate vote for maintenance employees because it would “fracture” the workforce. But in a series of appeals court decisions from all across the U.S., separate bargaining units are found to be perfectly legal and the position taken by VW has been rejected.

4/27/2016: The National Labor Relations Board on Tuesday filed an unfair labor practices complaint against Volkswagen for not bargaining with a portion of plant workers at its Tennessee plant represented by the United Auto Workers union.

Under board procedure, employers must formally refuse to recognize a union certified by the NLRB in order to bring the case to U.S. appeals courts. As the board earlier this month said Volkswagen workers could join the UAW, the agency will likely soon rule against Volkswagen, allowing the company to appeal.

4/25/2016: Gary Casteel, secretary-treasurer of the UAW and director of the international union’s Transnational Department, today released the following statement in response to Volkswagen’s decision to violate federal law and fight a ruling by the National Labor Relations Board (NLRB):

“Today, the UAW asked the NLRB to issue an unfair labor practice complaint against Volkswagen Group of America. The facts are: On April 13, the NLRB issued a clear decision supporting efforts among Volkswagen skilled-trades employees to secure meaningful representation in Chattanooga. By choosing to fight the NLRB, Volkswagen is in clear violation of federal law. We are asking the NLRB to order the company to immediately abide by federal law and come to the bargaining table with its employees.

“If Volkswagen tries to force this matter into the federal court of appeals, we see it as a stall tactic that won’t work. The appeals court with jurisdiction over the Chattanooga plant already has ruled that clearly identifiable employee units within a workforce, such as the skilled-trades unit at Volkswagen, can seek recognition in order to achieve collective bargaining.

“We reject the company’s claim that recognizing and bargaining with the skilled-trades employees would somehow splinter the workforce in Chattanooga. Recognizing clearly identifiable employee units is common in the U.S. Furthermore, Volkswagen plants all over the world — including in countries such as Italy, Russia and Spain — recognize multiple unions that represent portions of a workforce.

“The reality is: Our UAW local union already represents a majority of the blue-collar workforce in Chattanooga. Volkswagen knows this because the company has verified our substantial membership level. If Volkswagen wants meaningful employee representation, the company is free to recognize the local union as the representative of its members, as it committed to do previously. It is unacceptable that the Chattanooga plant is the only facility not represented on the Volkswagen Global Group Works Council, the influential body of employee leaders from around the world.

“At a time when Volkswagen already has run afoul of the federal and state governments in the emissions-cheating scandal, we’re disappointed that the company now is choosing to thumb its nose at the federal government over U.S. labor law. At the end of the day, the employees are the ones being cheated by Volkswagen’s actions.”

4/14/2016: The German trade union IG Metall today released the following statement after the National Labor Relations Board denied Volkswagen’s request to review the election in which skilled-trades employees voted to designate UAW Local 42 as their bargaining representative:

“NLRB confirmed that the union election of December 2015 at the VW plant in Chattanooga was legitimate. At that time the skilled-trades employees voted with a great majority for a union representation. With immediate effect, UAW can negotiate a collective agreement for the skilled-trades employees at VW in Chattanooga. Jörg Hofmann, President of IG Metall, declared: ‘Volkswagen employees in Chattanooga should have the same rights as other Volkswagen team members around the world. It is in Volkswagen’s own interest to accept the NLRB decision and not to contest it once again.'”